Judgment
1. Leave granted. Whether the State Government is under an obligation to return the acquired land to the owners after the purpose of acquisition is accomplished is the question which arises for consideration in this appeal filed against the order dated 21-1-2008 passed by the Division Bench of the Punjab and Haryana High Court in Leelawanti v. State of Haryana CWP No. 9152 of 2007.
2. One Shri Radha Krishan owned several parcels of land in Village Shodapur, Tehsil Madlauda, District Panipat. After the death of Radha Krishan in 1972, land owned by him was inherited by his legal heirs including Appellant 4, Satish Chander (son); Appellant 5, Smt Seeta Devi (daughter) and Appellant 6, Swaran Lata (daughter). Some of the other heirs of Radha Krishan bequeathed their shares to his grandchildren (Appellants 2 and 3) by executing separate wills. A general power of attorney was also executed in favour of Appellant 1, Smt Leelawanti @ Savita Rani, wife of Appellant 4 Satish Chander.
3. In 1976, the State Government acquired the appellants' land for construction of brick kiln for feeder and return channels in Village Shodapur. Notifications under Sections 4 and 6 read with Section 17 of the Land Acquisition Act, 1894 (for short “the Act”) were issued on the same day i.e 7-9-1976. The Land Acquisition Collector passed the award dated 6-12-1976 and the compensation determined by him was paid to the appellants, who received the same without raising any objection/protest.
4. After 23 years, the appellants through their advocate Shri A.K Wadhawan, sent notice dated 13-7-1999 to the functionaries of the Irrigation Department and the Land Acquisition Collector for return of the acquired land by asserting that the purpose for which the land was acquired had been achieved by the Irrigation Department and the acquired land is now lying abandoned in the form of pits for the last 17-18 years and that the same is no more required by the Department concerned. In the notice it was also mentioned that the adjoining land of the appellants comprised in Rectangle No. 31, Killa No. 13, 12/1 min was also acquired by the Irrigation Department for the purpose of extension of government kiln but the same was returned after the purpose of acquisition was achieved.
5. In his reply to the notice, the Land Acquisition Collector vide his letter dated 26-8-1999 informed the appellants' advocate that he does not have the power to acquire or return the land and that the appellants may contact the Collector, Panipat. In a separate reply the Superintending Engineer (Irrigation) (Construction Circle, Karnal) disclosed that the land was acquired for brick kiln for feeder and return channel for the thermal plant and the work was executed as a deposit work of the Haryana State Electricity Board (HSEB). According to the officer concerned, after completion of the project, the land was transferred to HSEB. Yet another reply was sent by the Engineer-in-Chief, Construction, PTPP, HPGC, Panipat stating therein that feeder channel construction by the Irrigation Department is under the control of the Chief Engineer (O&M), PTPS, Panipat.
6. Having failed to evoke a favourable response from the authorities concerned, the appellants filed a petition under Article 226 of the Constitution and prayed for issue of mandamus to the respondents to restore the land to them. In support of their claim, the appellants relied upon Para 493 of the Land Administration Manual, Standing Order 28 and the judgment of this Court in State of Haryana v. Suraj (2004) 12 SCC 538. The appellants also pleaded that not only their land comprised in Rectangle No. 31 but land owned by others, namely, Chanan Singh, Rattan Singh, Sher Singh, sons of Jawahar Singh and Pratap Chand, son of Jagdishwar Lal had been returned to the owners after fulfilment of the object of acquisition.
7. In the counter-affidavit filed on behalf of Respondents 2 and 4 it was pleaded that the acquired land was utilised for setting up brick kiln and other purposes including taking of earth for raising the ash pond bandh. It was further pleaded that there is no provision in Standing Order 28 for return of the acquired land.
8. In a separate written statement filed on behalf of Respondents 1, 3 and 5, it was averred that after the acquired land was transferred to the Haryana State Electricity Board in 1983, the same was used for the specified public purpose. In Para 8 of the counter-affidavit it was pleaded that as a policy, the brick kilns were set up by the Irrigation Department in the same area where new channel/canal was constructed. It was further pleaded that after completion of the work the acquired land was utilised for other purposes.
9. The High Court negatived the appellants' plea that in view of Standing Order 28, the respondents were obliged to return the acquired land by observing that the object of utilising the acquired land cannot remain static for all times and the same can be used for other purposes. The High Court also observed that once the acquired land vested in the State Government, the same cannot be returned to the owners after a gap of 30 years.
10. Shri Mahendra R. Anand, learned Senior Counsel appearing for the appellants argued that the acquisition of the appellants' land was ex facie illegal because the State Government had invoked the urgency provisions without any tangible reason and, thereby, deprived the landowners of their valuable right to file objections under Section 5-A(1) and to be afforded an opportunity of hearing in terms of Section 5-A(2). He submitted that this plea was specifically raised before the High Court but the same has not been adequately considered.
11. The learned Senior Counsel then relied upon Standing Order 28 and argued that the respondents are duty-bound to return the acquired land because the purpose of acquisition has already been achieved. The learned counsel submitted that the brick kiln constructed by the Irrigation Department for manufacturing bricks required for lining the feeder and return channel does not exist any more and, as such, the respondents do not have any option but to return the acquired land to the appellants.
12. The learned counsel for the respondents supported the impugned order and argued that the appellants do not have the locus to seek return of the acquired land because the same had already been utilised for the specified public purpose. He further argued that the appellants' challenge to the acquisition proceedings was highly belated and they cannot seek invalidation of the notifications issued under Sections 4 and 6 read with Section 17 of the Act after a long time gap of more than 30 years.
13. We have considered the respective submissions and examined the records. In our view, the High Court did not commit any error by not entertaining the appellants' challenge to the acquisition of land because they did not offer any explanation for the long time gap of more than three decades between the issue of notifications under Sections 4 and 6 i.e 1976 and filing of the writ petition i.e 2007.
14. In State Of M.P. v. Bhailal Bhai AIR 1964 SC 1006, (1964) 6 SCR 261 a Constitution Bench of this Court held that even though no period of limitation has been prescribed for filing a petition under Article 226 of the Constitution, the High Court can non-suit the petitioner who is guilty of laches. The Constitution Bench also observed that if the delay is more than the period prescribed for filing a suit then the same would ordinarily be treated as unreasonable and the High Court will be fully justified in denying relief to the petitioner unless cogent explanation is offered for the delay.
15. These propositions are borne out from the following extracts of the judgment: (Bhailal Bhai case AIR 1964 SC 1006, (1964) 6 SCR 261, AIR pp. 1011-12, paras 17 & 21)
“17. … It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Court rightly takes into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the Court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus.
21. … Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after 17-1-1956 the delay in making these applications should be considered unreasonable.”
(emphasis supplied)
16. The doctrine of laches has been invoked in Bhagat Singh v. State of U.P (1999) 2 SCC 384, Northern Indian Glass Industries v. Jaswant Singh (2003) 1 SCC 335, Haryana State Handloom & Handicrafts Corpn. v. Jain School Society (2003) 12 SCC 538 and Govt. of A.P v. Syed Akbar (2005) 1 SCC 558 for negating challenge to the acquisition of land.
17. We shall now deal with the question whether the appellants are entitled to seek a direction for return of the acquired land on the ground that the purpose for which the land was acquired has already been achieved. Para 493 of the Land Administration Manual, which finds reference in Standing Order 28 and on which reliance has been placed by the learned Senior Counsel for the appellants reads as under:
493. Disposal of land no longer required, where land in the permanent occupation of any departments of the Punjab Government is no longer required, it should be handed over to the Deputy Commissioner of the district, who becomes responsible for the disposal of it under the orders of the Commissioner.
It may not, however, be permanently alienated without the previous sanction of the Government. There is no legal bar to its being put up to auction. But as a matter of grace, the Government is usually willing to restore agricultural and pastoral land to the persons from whom it acquired it or to their heirs on their refunding the amount paid as compensation less the 15% granted for compulsory acquisition. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by the use to which the Government had put it. The improvement must be one affecting the quality of the land. The fact that the land which was unirrigated at the time of acquisition can when relinquished, be watered by a canal is not an improvement of this sort. Considering how great the rise in the market value of the land has been, the terms stated above are very liberal. It is not necessary to adopt them in their entirety where the persons concerned are remote descendants or relations of the original holders and where the circumstances of the case are at all out of common, when for example no price, or merely a nominal price, was paid to the owner in the first instance, or when the rise in the value of land in the neighbourhood has been exceptionally large, these facts should be pointed out when referring such cases for orders so that the Government may have sufficient material before it to decide whether to offer any special terms to the heirs of the persons from whom that land was acquired.
18. A reading of the above reproduced paragraph of the Land Administration Manual nowhere suggests that the State Government is duty-bound to restore the acquired land to the owners after the purpose of acquisition is accomplished. It merely mentions that as a matter of grace the Government is usually willing to restore agricultural and pastoral land to the owners on their refunding the amount of compensation.
19. If Para 493 is read in the manner suggested by the learned counsel for the appellants then in all the cases the acquired land will have to be returned to the owners irrespective of the time gap between the date of acquisition and the date on which the purpose of acquisition specified in Section 4 is achieved and the Government will not be free to use the acquired land for any other public purpose. Such an interpretation would also be contrary to the language of Section 16 of the Act, in terms of which the acquired land vests in the State Government free from all encumbrances and the law laid down by this Court that the lands acquired for a particular public purpose can be utilised for any other public purpose.
20. The judgment of this Court in State of Haryana v. Suraj (2004) 12 SCC 538 turned on its own facts. In that case, the land of the respondents was acquired by the State Government for installation of a brick kiln for making Bhakra Canal (the date or year of the acquisition has not been mentioned in the judgment). On 28-6-1977 the State Government passed an order declaring the land as surplus and directed that the same be disposed of as per Standing Order 28, which postulated that priority will be given to the landowners. The Financial Commissioner, instead of disposing of the land in accordance with Standing Order 28, passed an order dated 12-2-1990 and transferred the surplus land to the Forest Department free of cost. The suit filed by the respondents was decreed by the trial court. The first and the second appeals filed by the appellants were dismissed by the Additional District Judge, Sonepat and the learned Single Judge of the High Court, respectively. This Court held that once the State Government had declared the land surplus and directed its disposal as per Standing Order 28, the Financial Commissioner did not have the jurisdiction to transfer the same to the Forest Department free of cost.
21. In the aforesaid judgment in Suraj case (2004) 12 SCC 538 no proposition of law was laid down which could be treated as a binding precedent. That apart, the factual matrix of the present case shows that the acquired land was used for construction of feeder and return channel for the thermal plant and after the public purpose as specified in the acquisition notification was fulfilled, the land was transferred to HSEB and now it is with Respondent 2 i.e Haryana Power Generation Corporation. This being the position, the High Court cannot be said to have committed any error by declining the appellants' prayer for issue of a mandamus to the respondents to return the acquired land.
22. The approach adopted by the High Court is consistent with the law laid down by this Court in State of Kerala v. M. Bhaskaran Pillai (1997) 5 SCC 432 and Govt. of A.P v. Syed Akbar (2005) 1 SCC 558. In the first of these cases, the Court considered the validity of an executive order passed by the Government for assignment of land to the erstwhile owners and observed: (M. Bhaskaran Pillai case (1997) 5 SCC 432)“4
. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value.”
23. The facts of the second case show that the respondents succeeded in persuading the Andhra Pradesh High Court to order release of land in terms of Standing Order 90(32) of the A.P Board of Revenue (as amended in 1998). This Court referred to Sections 16 and 48 of the Act and observed: (Syed Akbar case (2005) 1 SCC 558)
“15. … If the land relinquished is likely to be again required for public purposes, it should be merely leased out for such term as may be considered desirable in each case. If the acquired land was an agricultural land at the time of acquisition, it should be disposed of inviting for sale in public auction by giving wide publicity in respect of sale. If at the time of sale, anybody puts forth his claim in respect of any field either as an adjacent owner or as an original owner, the sale of that field should be stopped and his claim investigated and disposed of in the manner specified in sub-clauses (i) and (iv) of Note (2) of the Board's Standing Order 90(32). If it is found that his claim is not proved, the field should be sold by public auction. In the case on hand, there is nothing on record to show that the part of the acquired land which remained unused was relinquished by the Government. A letter of the Resident Engineer stating that the unused land was no more required cannot amount to relinquishment of the said land by the competent authority. In order to make a claim under para 32 of the said Board's Standing Order in the first place, it was necessary that the competent authority had subsequently relinquished the unused land. After such relinquishment of the land, the land had to be notified for sale in public auction. If at the time of sale of such land, the original owner made a claim, sale could be stopped and his claim could be investigated and thereafter the land was to be disposed of in the manner specified under the said paragraph. Added to this, by virtue of the amendment to para 32 brought about by GOMs No. 783 dated 9-10-1998, the land for the public purpose shall be utilised for the same purpose for which it was acquired as far as possible and in case the land is not used for the purpose for which it was acquired due to any reason, the land shall be utilised for any other public purpose as deemed fit.”
24. For the reasons stated above, we hold that the appellants have failed to make out a case for issue of a mandamus to the respondents to release the acquired land in their favour. In the result, the appeal is dismissed without any order as to costs.
Comments